EFF Stands Up for Online Journalists' Rights in Apple v.
Does

Case Has Broad Implications for Journalists and
Confidentiality of Sources

The Electronic Frontier Foundation (EFF) told a San Jose,
California appeals court Thursday that denying protections
for confidential sources would deliver a dangerous blow to
online journalism and independent media.

Apple Computer is suing several unnamed individuals, called
"Does," who allegedly leaked information about an upcoming
product to online news sites PowerPage and AppleInsider. As
part of its investigation, Apple subpoenaed Nfox --
PowerPage's email service provider -- for communications and
unpublished materials obtained by PowerPage publisher Jason
O'Grady. A trial court upheld the subpoena.

In arguments before the 6th Appellate District of the
California Court of Appeal, EFF Staff Attorney Kurt Opsahl
told a panel of three judges that a subpoena to Nfox
violated the federal Stored Communications Act, which
requires direct subpoenas of account holders. Opsahl also
argued that O'Grady and other online journalists are
entitled to protect their confidential source information
under both the California constitution and the U.S.
Constitution.

In addition to the parties in the case, attorneys for
conservative blogging group The Bear Flag League and Intel
Corp. spoke to the court, with Intel arguing in support of
Apple.

EFF worked with co-counsel Thomas Moore III and Richard
Wiebe in this case. A ruling should be announced within 90
days.

Calling For Sunshine at the Smithsonian

As we mentioned in EFFector two weeks ago, the Smithsonian
Institution and Showtime Networks, Inc., have entered into a
deal with troubling implications for the public domain.
According to a report from the Washington Post, filmmakers
wishing to use Smithsonian archives will "first have to
offer the idea to Smithsonian/Showtime. Otherwise, the
archives could not be used outside the realm of news
programs ... in most cases." And if the proposed WIPO
Broadcasting Treaty comes into force, filmmakers wishing to
use the material might even be prevented from extracting
public domain material from a Showtime broadcast.

A Freedom of Information Act (FOIA) request was recently
sent to the Smithsonian seeking public disclosure of the
terms of the deal. (EFF is representing the Center for
American Progress in connection with the request.) Now 215
citizens have signed an open letter to the Smithsonian,
demanding that the terms of the deal be made public.
Signatories include technology luminaries (Vint Cerf, Mitch
Kapor, David Farber), filmmakers (Michael Moore, Ken Burns),
academics (Larry Lessig, Pam Samuelson), and public interest
groups (Public Knowledge, Future of Music Coalition, Ass'n
of Research Libraries).

Kudos to Carl Malamud at the Center for American Progress
for spearheading the sunshine effort.

Digital Copyright Law Hurts Consumers, Scientists, and
Competition

EFF Report Highlights More Unintended Consequences in Seven
Years of DMCA

San Francisco - In the seven years since Congress enacted
the Digital Millennium Copyright Act (DMCA), examples of the
law's impact on legitimate consumers, scientists, and
competitors continue to mount. A new report released this
week from the Electronic Frontier Foundation (EFF),
"Unintended Consequences: Seven Years Under the DMCA,"
collects reports of the misuses of the DMCA -- chilling free
expression and scientific research, jeopardizing fair use,
impeding competition and innovation, and interfering with
other laws on the books. The report updates a previous
version issued by EFF in 2003.

The report tells the story of the delay of the disclosure of
the Sony BMG "rootkit" vulnerabilities on millions of music
CDs. The dangerous software flaws were initially discovered
by Princeton graduate student J. Alex Halderman. But
Halderman delayed sounding the alarm about the security
problems for several weeks so he could consult with lawyers
about potential violations of the DMCA. The report also
details the DMCA's role in impeding RealNetworks from
selling digital music to Apple iPod owners, along with other
unintended consequences from the DMCA.

"Rather than being used to stop 'piracy,' the DMCA has
predominantly been used to threaten and sue legitimate
consumers, scientists, publishers, and competitors," said
EFF senior staff attorney Fred von Lohmann. "This law is
not being used as Congress intended, and a review of the
past seven years makes it clear that reform is needed."

Visit EFF at the Maker Faire Dunk Tank and MySQL Users
Conference

If you're going to O'Reilly's Maker Faire on April 22-23 in
San Mateo, California, be sure to stop by the Dunk The
Makers stand. Maker Bruce Gee has constructed a fine DIY
dunk tank, and you'll get an opportunity to see the great
and the good of hardware hacking doused for the benefit of
cleanliness, godliness -- and $20 to EFF per bucket.

If you'd like to volunteer for victimhood (or are bringing
an unsuspecting friend who you'll volunteer by proxy), send
mail to danny@eff.org marked "H2O" with names. Ponchos and
warm towels will be available.

EFF will have a booth at the Faire on April 22. Come by and
grab some EFF swag.

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